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Technology and the Future

Electronics newsletter

A series of articles exploring modern advances in intellectual property and electronics.

June 2019

2 Haseltine Lake Kempner | Electronics newsletter June 2019

In the telecommunications industry, patentees are required to grant licences on Fair, Reasonable And Non-Discriminatory (FRAND) terms in return for involvement in the standard-setting process. However, the determination of which licences are and aren’t FRAND has proved to be a thorny issue.

The decision in Unwired Planet v Huawei in 2017 established that there is only one FRAND licence, and the FRAND licence may be global. Justice Birss further ruled that English courts have the jurisdiction to set the terms of a global FRAND licence. As Huawei refused a global FRAND licence, Unwired Planet was entitled to an injunction.

Huawei duly appealed to the Court of Appeal, which considered three issues:

Did the FRAND licence need to be global?

The Court of Appeal maintained that a FRAND rate may be global depending on the circumstances. In this case, a global licence, rather than a UK licence, is FRAND. However, the Patents Court erred in finding there is only one set of FRAND terms. An SEP owner meets their obligation by offering any set of terms which is considered to be FRAND.

Should Huawei be given the same royalty rate that Unwired Planet had agreed with Samsung?

The Court of Appeal maintained that FRAND does not require “hard-edged”

non-discrimination. If an SEP owner charges one licensee a rate that is less than a FRAND rate, the SEP owner is not necessarily required to offer the lower rate to other licensees to meet their FRAND obligation.

Was Unwired Planet entitled to an injunction given that it did not give notice or offer a FRAND licence?

Huawei argued that Unwired Planet abused its dominant position, as the steps for negotiation outlined in a transitional case Huawei v ZTE [2015] Bus LR 1261 were not followed. The Court of Appeal found that the steps outlined in Huawei v ZTE are a safe harbour, rather than a mandatory requirement. In this case, Unwired Planet did not abuse its position and therefore was entitled to an injunction.

The saga is not over yet, however, as Huawei has recently been given permission to make a further appeal to the Supreme Court.

Back in 2017, Justice Birss delivered a landmark decision concerning standard-essential patents (SEPs) in the Patents Court of England and Wales, effectively setting the terms of a worldwide licence between the claimant, Unwired Planet and the defendant, Huawei. At the end of 2018, the case returned to the Court of Appeal for round two.

Written by Monique Henson

FRAND licences in the UK - an update

3 Haseltine Lake Kempner | Electronics newsletter June 2019

A key issue with electric car technology is how easy the cars are to live with; until electric cars match or approach the convenience and speed with which traditional internal combustion engine vehicles can be refuelled, it is difficult to see how electric vehicles can become truly ubiquitous. Two overlapping areas in which advances in electric vehicle technology can help to address this issue are improved battery technology and improved charger technology.

Ford are working on the next generation of batteries with investments in all solid state batteries (ASSB), which promise improvements in stored energy (and hence driving range) and safety relative to existing lithium ion designs. Other manufacturers are focussing on the speed with which batteries can be charged; the “Supercharge” points compatible with Tesla vehicles are becoming an increasingly common sight at motorway service stations, and an industry consortium including BMW and

Porsche have recently unveiled a next generation charging system, claiming a charge sufficient for 100km of driving can be delivered in less than three minutes.

Fast charge systems may be complemented, or potentially replaced, by inductive charging systems which do not require a connection cable between the car and the charging station. This technology can be used to increase the convenience of charging a vehicle, as inductive charging points can be fitted outside homes or in car parks and can then be used to automatically charge an electric vehicle with minimal input from the driver. The Norwegian city of Oslo plans to provide inductive charging taxi ranks for electric taxis, allowing the vehicles to be charged while queueing for passengers. This is part of ambitious schemes for all taxis in the city to be electric by 2023. The Norwegian government also has a goal for all new cars sold in the country from 2025 to be fully electric.

These are just a few of the recent developments in electric car technology. It seems clear that a future in which electric vehicles outnumber traditional cars can only be a matter of time.

‘‘ Electric vehicles are therefore a rapidly growing market’’

Over the last decade there has been a shift in how cars are viewed and used. As a result of specific events such as the emissions fraud “dieselgate” scandle, and as awareness of the effects of car exhaust fumes on health and the natural environment increases, the share of the car market occupied by hybrid or fully electric vehicles has rapidly increased. Many governments have also provided financial incentives to encourage the uptake of electric vehicles. Electric vehicles are therefore a rapidly growing market, and several of the companies competing for a share of this market are attempting to differentiate themselves from their rivals using technological innovations.

Written by Greg Ward

The electric future of the car

4 Haseltine Lake Kempner | Electronics newsletter June 2019

In a referral to the Enlarged Board of Appeal (EBA), the Technical Board of Appeal has asked for more guidance on how to assess inventive step for patent applications directed to computer-implemented simulations.

Written by Andrew Sunderland

Can you patent a simulation at the EPO?

To that end, the following questions have been referred to the EBA (G1/19 – referral from T 0489/14):

1. In the assessment of inventive step, can the computer-implemented simulation of a technical system or process solve a technical problem by producing a technical effect which goes beyond the simulation’s implementation on a computer, if the computer-implemented simulation is claimed as such?

2. If the answer to (1) is yes, what are the relevant criteria for assessing whether a computer-implemented simulation claimed as such solves a technical problem? In particular, is it a sufficient condition that the simulation is based, at least in part, on technical principles underlying the simulated system or process?

3. What are the answers to the first and second questions if the computer-implemented simulation is claimed as part of a design process, in particular for verifying a design?

The first question is attempting to establish whether a simulation, by itself, can ever provide a technical effect.

If the EBA deems that a simulation, when taken in isolation, can have a technical effect, then the next question becomes; how can an examiner at the EPO reliably and repeatably assess patentability in such cases. This second question is essentially asking for a test or checklist, based on which an examiner can make an assessment.

The third question is asking whether a simulation, if claimed as part of a design process, could be patentable. Presumably if the answer to the first question is yes, then the answer to this question would also be yes. But a design process may imply a product, and verifying a design implies limitations to the simulation that may have real-world implications.

While the referral is pending, applications, oppositions and appeals in which the decision depends entirely on the answer to the above questions may be stayed at the request of the parties or by the examining or opposition division on its own initiative.

The EBA’s answers should provide some useful guidance on how to improve an applicant’s chances of successfully protecting simulation-related inventions in Europe. Watch this space for our follow-up article as soon as a decision is issued.

5 Haseltine Lake Kempner | Electronics newsletter June 2019

It is estimated that in 2018, 55 % of the world’s population resided in urban areas. With this fraction expected to rise to 68 % by 2050, there is ever increasing pressure on infrastructure, systems and services, including housing, transport and healthcare, to name but a few [1]. “Smart cities” aim to improve the quality of urban life by using 5th Generation (5G) wireless technology in combination with Internet of Things based technologies, which may help to mitigate these pressures [2].

Written by Nicholas Davies

How 5G technology is enabling smart cities

Smart city innovations cover a range of new technologies, from flexible street lighting, to digital tracking of shared bicycles, prevention of drink drowning using thermal imaging cameras and providing data on traffic to autonomous vehicles.

In a world where everything is connected, higher data transfer rates are needed. 5G wireless technology aims to meet this demand, and has seen a surge in patent applications over the last five years.

As explained in patent application US2018323754A, 5G technology will enable a leap in data transfer rates between wireless devices, which include everything from smart phones to connected cars. To achieve these higher data transfer rates, higher frequency bands are utilised, typically in the millimetre wavelength range. As explained in WO2016085266A1, a drawback of using higher frequency bands is an increase in propagation loss whereby the propagation arrival distance becomes relatively short and the coverage becomes reduced. To this end, developments in beamforming and massive multiple-input multiple-output (MIMO) technology, amongst other areas of multiple antenna techniques, are being made.

As mobile data speeds become lightning fast, we can look forward to our cities becoming smarter, more efficient, and better connected.

References[1] Caird, S. P. & Hallett, S. H. (2019) Towards evaluation design for smart city development, Journal of Urban Design, 24:2, 188-209, DOI: 10.1080/13574809.2018.1469402[2] Cocchia A. (2014) Smart and Digital City: A Systematic Literature Review. In: Dameri R., Rosenthal-Sabroux C. (eds) Smart City, Progress in IS. Springer, Cham.

Natasha Fairbairn Associatenfairbairn@hlk-ip.com +44 (0) 117 910 3200

Greg Ward Senior Associategward@hlk-ip.com +44 (0) 207 611 7900

Caroline DayPartnercday@hlk-ip.com +44 (0) 117 910 3200

Andrew SunderlandSenior Associateasunderland@hlk-ip.com +44 (0) 207 611 7900

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